The Patriot Act Is Finally Dead, But Its Successor Is Only Slightly Better . . .

Riding on the fear and panic of a nation overwhelmed by the events a little over a month before, Congress worked hastily to introduce the USA Patriot Act, which was crafted by conservative politicians Viet Dinh (Assistant Attorney General of the Bush administration) and Congressman Jim Sensenbrenner (R-WI). The bill was introduced in the House of Representatives on October 23, 2001 and was signed by President George W. Bush on October 26, 2001. “USA PATRIOT” is an acronym which stands for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.”

Though its purpose was to monitor and thwart potential terrorist plots, the Patriot Act has often been abused by law enforcement agencies and has largely contributed to the growing police-state culture in the United States. One of the most infamous abuses was the NSA’s bulk collection of telephone records and cell phone metadata, which was leaked by computer programmer Edward Snowden in 2013. The NSA pointed to Section 215 of the Patriot Act as the legal authority for which this practice was based. The American Civil Liberties Union challenged this assertion in ACLU v. Clapper, in which the Second Circuit Court of Appeals ruled on May 7th, 2015 that Section 215 granted no such authority.

Finally, Senator Rand Paul (R-KY) took a stand against the Patriot Act in a 10-hour long fillibuster, which blocked Senate action, much to the chagrin of Senate Majority Leader Mitch McConnel (R-KY), allowing key provisions (including section 215) of the Patriot Act to expire at midnight. Prior to that, however, the House of Representatives passed a bill that was intended to “[t]o rein in the dragnet collection of data by the National Security Agency (NSA) and other government agencies, increase transparency of the Foreign Intelligence Surveillance Court (FISC), provide businesses the ability to release information regarding FISA requests, and create an independent constitutional advocate to argue cases before the FISC.” Senator Rand Paul was opposed to this bill because he felt that it did not go far enough and voted against it today. Independent presidential hopeful Bernie Sandters (I-VT) also voted against the bill.

The USA Freedom Act is supposed to phase out the NSA’s bulk collection program within six months and establish programs by which private companies (e.g. cell phone providers) would retain their own records. Law enforcement officials would then be required to seek a warrant based on an individualized suspicion pending an ongoing investigation. However, the standard of proof for such an order would be based on a reasonable suspicion, rather than probable cause as mandated by the Fourth Amendment. This is one of the issues that opponents such as Rand Paul and other civil liberties advocates cite as being weak. In an opposition letter from a coalition of civil liberties advocates, it was pointed out that the USA Freedom Act “fail[s] to reform mass surveillance . . . conducted under section 702 of the FISA Amendments Act of 2008 and Executive Order 12333.” The letter argued that the USA Freedom Act merely substitutes a different legal authority that such programs may be conducted and therefore constitutes “no reform at all.”

The plain truth is that the USA Freedom Act is a victory, albeit a meager one. The problem we have is that government spying and intrusion into the personal affairs of its citizens is an unwelcome reality that has been in existence for ages. Technology only exacerbates the problem. And unfortunately, even if in good conscience politicians like Rand Paul and Bernie Sanders cannot support such policies, the divisiveness and polarity which now permeates modern politics in the United States necessitate that victories be moderate. So we civil liberties advocates shall applaud this humble, bipartisan victory and count it is a small battle won in the long war yet ahead.